BILL ANALYSIS
AB 675
Page 1
Date of Hearing: April 8, 1997
Counsel: Michael A. Katz
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Robert M. Hertzberg, Chair
AB 675 (Villaraigosa) - As Proposed to be Amended (RN 9710120)
SUMMARY : Expands the crime of criminal possession of a firearm to
include possessing a handgun when a person has 0.08% or more, by
weight, of alcohol in his or her blood. Specifically, this bill :
1) Makes it an alternate felony/misdemeanor for a person to
possess a handgun when a person has 0.08% or more, by weight of
alcohol in his or her blood, punishable by 16 months, two or
three years in state prison or by up to one year in the county
jail.
2) Rewrites a relief from disability statute to conform to a
ruling of the Court of Appeal; and in so doing, permits any person
who is subject to the prohibition because of a conviction of an
offense prior to the offense being added to the specified offenses
that are subject to the prohibition, to petition the court only
once for relief from the prohibition.
EXISTING LAW :
1) Does not prohibit possession of a handgun while intoxicated in
a public place.
2) Provides complex penalties for violation of driving under the
influence (DUI) laws. (Penal Code Sections 23161, 23166,
23171, and 23175.)
COMMENTS :
1) Author's Statement . According to the author, "More
Californians die each year from firearm injuries than from car
crashes. California is now one of 12 states where this is true.
Treatment of gunshot wounds is, on average, twice as expensive as
treatment of other intentional injuries. This expense is usually
not covered by private insurers: 80% of the medical cost for
treatment of firearm-related injuries is paid for by taxpayers.
Yet despite the tremendous cost, state law currently does not
address the extremely dangerous situation in which a person is
intoxicated while carrying a handgun.
While the first conviction of driving under the influence
carries a penalty of mandatory jail time and/or a fine,
carrying a handgun while intoxicated goes unpunished. Gun
owners shouldn't be able to get away with reckless behavior
while carrying their weapons. Getting drunk while carrying a
handgun is irresponsible and dangerous and should carry as
stiff a penalty as does drunk driving."
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2) Legislative History . On April 5, 1995, the Committee on Public
Safety (COPS) heard ABx1 91 (Burton) which made it a
misdemeanor for a person to possess a firearm in a public place
when a person has 0.08% or more, by
weight, of alcohol in his or her blood. The bill passed COPS, but
this language was removed from the bill in Assembly Ways and Means
(now Assembly Appropriations).
There are two differences between the ABx1 91 and this bill.
ABx1 91 did not include a "public place," and the penalty was a
misdemeanor not an alternative felony/misdemeanor.
3) Penalty . Should the penalty for "firearm under the influence"
be a misdemeanor instead of an alternative felony/misdemeanor?
Under current law, driving under the influence is a
misdemeanor. DUI does not become an alternative
felony/misdemeanor until the fourth or subsequent offense.
4) 0.08 . It is unlawful for any person who has a 0.08% or more,
by weight, of alcohol in his or her blood to drive a vehicle. The
Association for Los Angeles Deputy Sheriffs, Inc., opposes this
bill because if a crime occurs in the presence of a peace officer,
one who may have been previously engaged in a social activity
involving minor use of alcohol, that officer may refuse to act
because that officer may be deterred by the threat of criminal
prosecution. Blood alcohol content of 0.08% percent is not a
minor amount. Driving a motor vehicle with a blood alcohol level
of .08% or more is a misdemeanor.
5) Public Place . Should this bill be limited to handgun
possession while under the influence in a public place? As
drafted, the bill would apply to a person at home. Is this the
author's intent?
According to background materials from the Los Angeles Times
(December 15, 1996), a sheriff's deputy who had been drinking
at a party and then at a bar was accused of shooting and
killing his girlfriend after a dispute at their Malibu home.
The deputy was convicted of manslaughter and served three years
in prison.
6) Public Trust . A Los Angeles civil rights attorney recently won
a $750,000 judgment in a wrongful death lawsuit involving a
drunk deputy.
7) Relief from Disabilities . In re Evans (1996) 49 Cal.App.4th
1263, the Court of Appeals held that the "relief from
disabilities provisions" in Penal Code Section 12021(c)(3) as
drafted violated the "Equal Protection Clauses" of the State
and Federal Constitutions. Evans involved a defendant who was
convicted of possessing a gun after he had been convicted of
spousal abuse. His conviction of spousal abuse occurred after
January 1, 1991, but prior to the offense of spousal abuse
barring gun possession for 10 years. That occurred in 1993.
Evans challenged his gun conviction that had he been convicted
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of spousal abuse prior to 1991, he could have claimed relief.
In agreeing with his claim, the Court of Appeal noted that the
January 1, 1991 date was irrational as to persons where the
offense barring possession was added to the list after January
1, 1991.
There are approximately 25 offenses added to the 10-year
prohibition after January 1, 1991. To save the statute from
invalidity, the Court of Appeal rewrote the statute to allow
anyone who was convicted of an offense subject to the 10-year
prohibition prior to the offense being added to the list of
offenses for which the 10-year prohibition applied to apply
once for relief from the disability imposed by the prohibition.
AB 675 codifies Justice McKinster's opinion."
ARGUMENTS IN OPPOSITION . While the California Rifle and Pistol
Association does not approve of anyone having a loaded firearm on
their person or within each reach while intoxicated, AB 675, as
introduced, appears to also apply to persons who are legally
transporting a handgun in a manner that makes the firearm not
immediately accessible by them. For example, if it is locked in
the trunk of the motor vehicle in which they are riding or in a
separate and secure locked container as required by existing
California law, an intoxicated person will not pose a
firearms-related danger to others. The same applies if the person
does have the firearm within reach, but not ammunition that can be
fired in it. The California Rifle and Pistol Association will
take a neutral position if the bill applies only to situations
where an intoxicated person actually has the immediate ability to
initiate a firearms related tragedy (i.e., possession of a loaded
handgun, or an unloaded handgun with ammunition immediately
accessible, either on the person or within immediate reach.
The California Attorneys for Criminal Justice do not believe that
this bill does anything to address gun violence.
REGISTERED SUPPORT/OPPOSITION :
Support
California State Sheriffs' Association
Doris Tate Crime Victims Bureau
Handgun Control
Opposition
Association for Los Angeles Deputy Sheriffs
California Attorneys for Criminal Justice
California Rifle and Pistol Association, Inc.
One private citizen
Outdoor Sportsmen's Coalition of California
Safari Club International
Sports & Arms Show Producers of America
The California Sportsmen's Lobby, Inc.
AB 675
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Analysis prepared by : Michael A. Katz / apubs / (916) 445-3268